The security of tenure : an introduction

Alain DURAND-LASSERVE, 2015

Access to secure land and housing is a precondition for reducing poverty, yet many millions of people live under the daily threat of eviction, or without sufficient security to invest what they have in improving their homes.

While the data on the number of slums dwellers worldwide are estimated with a relative accuracy (from an estimate of 924 millions people in 2001 (UN-Habitat 2003 c) to a figure of 827 millions in 2010 (depending on definition criteria), those on the number people exposed to insecurity are not so easily measured.

“Non-empirical evidence suggests that between 30 and 50 % of urban residents in the developing world lack any kind of legal document to show they have tenure security. Development agencies, academics and practitioners in urban issues concur that informal growth has become the most significant mode of housing production in cities of the developing world. In fact, gaining access to housing through legal channels is the exception rather than the rule for most urban poor households. In many cases the majority of inhabitants live with tenure systems that are “informal”, which means that their occupation of land and/or housing is either illegal, quasi-legal, tolerated or legitimized by customary or traditional laws, which can either be recognized or simply ignored by the authorities. Slums – the generic term used to classify informal, illegal or unplanned settlements – are the invisible “zones of silence” on tenure security” (UN-Habitat, 2006: 92-93).

This situation is explained by the fact that, the concept of security of tenure often refers to a perception, a subjective appreciation of a situation in a given time and place, by both people concerned, observers, decision makers and experts. It depends also on policy and political factors that may evolve rapidly overtime. Methodological attempts to overcome this problem have so far achieved limited results (UN-Habitat 2011f).

Unfortunately, the responses by governments have so far failed to keep pace with the challenge of urbanization and urban growth in ways which enable the majority of people on low incomes to meet their basic needs. These groups now represent a large and increasing proportion of total urban populations. Tenure security was removed from the UN definition of slums in 2009 (UN-Habitat, 2010-2011:33), (i) because it was considered too a subjective and less measurable than adequate access to water and sanitation, the structural quality of housing and overcrowding and (ii) because information on secure tenure was not available for most countries included in the UN database. However, evidence worldwide suggests that there is a close relationship and interaction between slums and tenure insecurity.

High land prices, inappropriate regulatory frameworks, bureaucratic inertia and political exploitation invariably conspire to inhibit progress. Mistaken confidence that there is a simple solution to such large and complex problems has also failed to address the diversity of legal, cultural, economic and political systems within which land tenure and property rights operate.

What is land tenure?

Any discussion of land tenure and property rights needs to recognise the importance of cultural, historical and political influences, as well as those of technical and legal systems. Each of these influences results in subtle differences in the way key terms and relationships are defined.

Inevitably, given the fundamental nature of the issue in human relations, many definitions of land tenure exist¹. The Global Land Tool Network at UN-Habitat² defines land tenure as “the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land”. A more detailed definition is provided in an earlier UN-Habitat report (2008:5) defines it as “the way land is held or owned by individuals and groups, or the set of relationships legally or customarily defined amongst people with respect to land. In other words, tenure reflects relationships between people and land directly, and between individuals and groups of people in their dealings in land”. This definition is the one used in this review as it is not only clear and comprehensive, but also makes a clear distinction between land tenure and property rights, which are defined as “recognised interests in land or property vested in an individual or group and can apply separately to land or development on it (eg., houses, apartments or offices). A recognized interest may include customary, statutory or informal social practices which enjoy social legitimacy at a given time and place”. More basically, therefore, tenure relates to the means by which land is held and property rights relate to who can do what on a plot of land.

Land tenure should primarily be viewed as a social relation involving a complex set of rules that governs land use and land ownership. While some users may have access to the entire ‘bundle of rights’ with full use and transfer rights, other users may be limited in their use of land resources (Fisher, 1995). The exact nature and content of these rights, the extent to which people have confidence that they will be honoured, and their various degrees of recognition by public authorities and the concerned communities, have a direct impact on how land is used (UN-Habitat, 2003b).

Property rights may vary within, as well as between, tenure systems. It is therefore possible to have a high level of security, but restricted rights to use, develop or sell land, or a limited level of security, but a wide range of actual rights.

It is important to note that the level of rights can be altered by a series of restrictions concerning the use of the land, which must conform to planning rules, development and construction norms and standards, as well as to the type of development mentioned in the contract or agreement between the owner and the user of the land. The level of rights may also depend on the period of time for which rights are agreed upon and whether they are renewable and transferable. Finally, the degree of formality in rights agreements or lease contracts can affect the level of rights as they can range from informal unwritten agreements to formal contracts between land owners and occupants (leaseholds). There also exist customary agreements that provide various levels of rights depending on the local legal and regulatory framework.

What is tenure security?

Secure tenure is the right of all individuals and groups to effective protection by the state against forced evictions, i.e. under international law, “the permanent or temporary removal against their will of individuals, families and/communities from the home and/or the land they occupy, without the provision of, and access to, appropriate form of legal or other protection”³. According to UN-Habitat (2004:31), security of tenure describes “an agreement between an individual or group to land and residential property, which is governed and regulated by a legal and administrative framework (the legal framework includes both customary and statutory systems). Security of tenure derives from the fact that the right of access to and use of the land and property is underwritten by a known set of rules, and that this right is justiciable. The tenure can be affected in a variety of ways, depending on constitutional and legal framework, social norms, cultural values and, to some extent, individual preference. In summary, a person or household can be said to have secure tenure when they are protected from involuntary removal from their land or residence by the State, except in exceptional circumstances, and then only by means of a known and agreed legal procedure, which must itself be objective, equally applicable, contestable and independent”. In order to take into account the perception of tenure security by people and communities, UN-Habitat expands the definition of tenure security by incorporating in the definition the degree of confidence that land users will not be arbitrarily deprived of the rights they enjoy over land and the economic benefits that flow from it (Bazoglu & UN-Habitat 2011:5).

Insecure tenure covers a wide range of local situations, from total illegality to various forms of tolerated occupation, or occupation legitimized by customary practices but not considered as legal by government or local authorities. In extreme cases, it may include land or property which could be subject to claims for legal recognition, but where such status has not been officially recorded or where the adjudication of claims has been denied. It also affects vast numbers of people. “Estimates suggest that between 30% and 50% of Asia’s urban residents lack any kind of legal tenure document which entitles them to occupy that land. In cities like Mumbai, Karachi, Manila and Dhaka, the proportion of people living without any form of tenure security in informal settlements is already much higher than the proportion of those living on formally-accessed land” (UN-Habitat 2008:3).

Insecure tenure and evictions

Eviction can be considered as the most detrimental manifestation of tenure insecurity for the urban poor, but it is not the only one: tenure insecurity impacts also on access to services, access to credit, vulnerability to risks and other hazards.

Although there is a tight link between tenure insecurity and eviction, (eviction takes place in settlements that do not enjoy security of tenure), insecurity does not systematically result in evictions, which are more influenced by political factors than by the tenure and occupancy status of the land. Many cities where communities do not have secure tenure are not threatened by evictions. If, according to the UN-Habitat definition, security of tenure requires the “effective protection by the state against forced evictions”, it must be stressed that this protection usually remains at the discretion of authorities.

Insecurity of tenure and related risks of eviction can be aggravated by political factors (threats of eviction of politically hostile communities), social stigmatization of poor communities, non-compliance with planning and construction norms and standards, and market pressure (demand for land impacts on land values in all land delivery channels).

However, a series of other factors can reduce the risk of eviction when security of tenure is not legally guaranteed: political will at the highest government level; perception of political risks for governments (threat on influential communities or the threat of protests if a high number of households are exposed to eviction); political protection or patronage; capacity of communities concerned to protect themselves (cohesion, self-organization, solidarity); support from civil society organizations and human rights organizations at national and international levels; intervention of national and international NGO, commissions, coalitions and federations; recommendations and guidelines by international aid & development agencies (UN, and bilateral; restrictions put by the World Bank[[Operational Manual 4.12 of the World Bank on Involuntary Resettlement, World Bank, 2001.]]).</multi>

Sources

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